Elements of a Supervisory Procedure

Elements of a Supervisory Procedure for the Climate Regime

Hermann E. Ott*

1.

Introduction

The United Nations Framework Convention

(FCCC)l new

is

one

scientific

cerns over

litical

of the

most recent

and in the wake of

findings

acid rain and the

arena

in the 1980s

by

Climate

on

environmental treaties. After

heightened

environmental

con-

taken into the pothe United Nations Environment Programme ozone

hole, the

Change alarming

issue

was

(UNEP) and the World Meteorological Organization (WMO)2. They

ganized

a

series of

workshops

which led

conference in Toronto 19883 and ence

in Geneva 19904.

sembly

to

to an

influential

or-

semi-diplomatic

the Second World Climate Confer-

Following by the latter, the UN General AsIntergovernmental Negotiating Committee for a a

call

established the

Ass.Jur., Institut für Klima, Umwelt, Energie, Wuppertal. Text in: 31 ILM 851 (1992); BGBl. 1993 11, 1783. 2

For the

history

of the FCCC cf. D. B

o

d

an s

k y, The United Nations Framework

Commentary, in: 18 Yale J. of Intl Law (1993), 451- 558; 1. Rowlands, The Politics of Global Atmospheric Change, Manchester 1995; An Overview of the D. Z a e I k e /J. C a in e r o n, Global Warming and Climate Change International Legal Process, in: 5 Am. Univ. J. Int'l Law & Policy (1990), 249-289; Convention

on

Climate

Change:

A

-

e r t h ü r, Politik im Treibhaus. Die Entstehung des internationalen Klimaschutzregimes, Berlin 1993; H. Ott, Das internationale Regime zum Schutz des Klimas, in: T. Gehring/S.Oberthür, Umweltpolitik durch internationale Regime, Opladen (to be published by the end of 1996). 3 The Changing Atmosphere: Implications for Global Security, cf. 5 Am. Univ. J. of Int'l Law & Policy (1990), 515. 4 J. j a g e r /H.L. F e r g u s o n (eds.), Climate Change: Science, Impacts and Policy. Proceedings of the Second World Climate Conference, Cambridge 1991.

S. 0 b

http://www.zaoerv.de © 1996, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht

Elements of

a

Supervisory

Framework Convention located

tariat

Climate

just

in

time

Change (INC/FCCC)

for it

the June 1992 UN Conference in Rio de Janeiro6. EC

733

Regime and

a

Secre-

Geneva5. Within fifteen months the INC drafted and

in

the FCCC,

adopted

on

Procedure for the Climate

at

The FCCC does

to on

be

signed by

154 States and the

Environment and

Development

legally binding obligations for controlling greenhouse gaseS7 and, largely due to its framework character, the Convention

after the

not contain

entered into force

soon

fiftieth

on

21 March

document of ratification

1994, three months with the

deposited

was

Secretary General. The preparations for the first Conference of

UN

the Parties, to be convened within one year after the entry into force of the Convention (Art. 7.4 FCCC), commenced with a "prompt start,,8: The INC continued to exist after the Convention's entry into force and i

served ties.

as

It

a

Preparatory

met six times

Committee for the first Conference of the Par-

after the

adoption

of the Convention, and the first

Conference of the Parties, which took place in Berlin from 28 March to 7 April 1995, was able to build on the INCs considerable adminisand technical preparatory work. The first Conference of the Partherefore largely successful in the establishment of an institu-

trative

ties

was

tional and

procedural

structure

for future efforts

to

grapple

with climatic

changes9. The first Conference of the Parties also laid the foundation for the further

5

development

U.N.

Resolution

Generations, G.A. 6

E B

The h

on

regime

and established

a

working

the Protection of Global Climate for Present and Future

Res.

45/212, U.N. Doc. A/45/49 (1990). Summit", for the documents see N.

"Earth G

of the climate

iI

Robinson/P.

Hassan/

i n,

Agenda 21 & The UNCED Proceedings, New York 1992. 7 Cf. H. 0 t t, V,51kerrechtliche Aspekte der Klimarahmenkonvention, in: H.G. Brauch (ed.), Klimapolitik. Naturwissenschaftliche Grundlagen, internationale Regimebildung und Konflikte, 5konomische Analysen sowie nationale Problemerkennung und Politikumsetzung, Heidelberg 1996, 61- 74. 8 Cf. Bodansky (note 2), 552 et seq. 9

ur

e n ne

-

u

m

For the results of the first Conference of the Parties

see S. 0 b e r t h ii r /H. 0 t t, UNThe First Conference of the Parties, in: 25 Environmental Policy & Law (1995), 144-156 (quoted infra: Oberthiir/Ott 1995a); M. Grubb, The Berlin Climate Conference: and Outcome Implications, London 1995; S. 0 b e r t h ii r /H. 0 t t, Stand und Perspektiven der internationalen Klimapolitik, in:

Convention

on

Climate

Change.

4 Internationale Politik und Gesellschaft 1995, 399

415 (quoted infra: 0 b e r t h 5 r / 0 t t Verhandlungspoker um Klimaschutz: Beobachtungen und Ergebnisse der Vertragsstaaten-Konferenz zur Klimarahmenkonvention in Berlin, Freiburg 1995; M. E h r m a n n, Ergebnisse des Berliner Klimagipfels, in: Umwelt- und Planungsrecht

1995b);

(1995),

T. K r a g e

435

-

n o

-

w,

439.


734

Ott

Mandate) that is supposed to draft climate protocol (or "another legal instrument") in time for the third (Ad

group a

Hoc

Group

on

the Berlin

Conference of the Parties

by

the end of 199710. The Parties

to

the

procedure for the "resoluagree tion of questions regarding implementation", as requested by Art. 13 of the Convention. This issue, the development of a supervisory procedure, shall be explored in the following contribution. Given the limited and does not aim to be space, however, it can only give an overview FCCC

were not

able, however,

to

on a

exhaustive.

2.

Implementation

Review and Resolution

of Disputes

in the FCCC

Since the law of nations is characterized by the absence of a formal hierarchical structure, it has never been easy to establish means of ensuring compliance with its obligations. The significance of these means is,

however, enhanced in the framework of treaty regimes with its

more re-

thus

frequently obligations. Treaty regimes peaceful settlement of disputes and establish a so-called .self-contained r6gime" which excludes resorting to unilateral reprisals for the contracting partiesi 1. fined and elaborated mutual

for the

provide

Whereas in many international treaties conflict management is left to eidiplomatic activities or to judicial settlement by the International Court of justice (ICJ) (or an international ad hoc tribunal), modern envither

increasingly using political and sometimes quasi-jusupervisory procedures12. Examples are the Non-Compliance Pro-

ronmental treaties dicial

are

cedure established under the Montreal Protocol on Substances that Deplete the Ozone Layer (1987)13 and the procedure established under the

10

The so-called "Berlin Mandate", Dec. 1/CP.1, UN Doc. FCCC/CP/1995/7/Add.1 the decisions of the Berlin meeting); cf. 0 b e r t h ii r / 0 t t 1995a (Anm. 9), 144

(containing et

seq. 11 The

terminology of the International Court of justice (ICJ) in the Case concerning Diplomaw and Consular Staff in Tehran (USA v. Iran), IQJ Rep. 1980, 3, 40,

United States 43. 12

Cf. T.

Gehring,

International Environmental

Regimes: Dynamic Sectoral Legal

(1990), 35 56; A K o s k e n niemi, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, in: 3 Yearbook of International Environmental Law (1992), 122 -162. 13 Text of the treaty 26 ILM 1541, 1550 (1987); BGBl. 1988 11, 1014; the non-compliance procedure is contained in the report of the Fourth Meeting of the Parties, 32 ILM 874 (1993); BGB1. 1993 11, 2182, 2196. For an elaboration see K o s k e n n i e m 1 (note 12) and

Systems,

in: 1 Yearbook of International Environmental Law

-


-

Elements of

a

Supervisory


735

Regime

are part of the impleenvironmental mentation mechanism of these treaties, building on multilateral communication and review procedures15. The Framework Convention on Climate Change does provide for ju-

Second

dicial a

Sulphur Protocol (1994)14. These procedures

settlement under Art. 14 and contains the foundations for

dispute

multilateral

review

which has been further elaborated by of supervision and enforceshall be described briefly in the next chapters, be-

procedure,

decisions of the Parties. These

of

obligations dealing with the negotiations

ment

fore

two means

on a

comprehensive supervisory

pro-

cedure under Art. 13 FCCC.

a) The dispute settlement procedure Most multilateral environmental treaties contain

cial

dispute settlement, usually

tions Charter16. Thus Art. 14 of the FCCC process for the settlement of

a

provision

on

judi-

modelled after Art. 33 of the United Na-

disputes:

stipulates

a

step-by-step

The Parties shall first attempt

to

procedure adopted in Step for the Protection of the Ozone Layer, a Big Step for International Law and Relations, 24 Verfassung und Recht in Obersee (Law and Politics in Africa, Asia and Latin America) (1991), 188 208; an overview of the practice is provided by 0. G r e e n e, Ozone Depletion: Implementing and Strengthening the Montreal Protocol, in: J.B. Poole/R. Guthrie (eds.), Verification Report 1992, London/New York 1992, 265 274 and 0. G r e e n e, Limiting Ozone Depletion: The 1992 Review Process and the Development of the Montreal Protocol; in: J.B. Poole/ R. Guthrie (eds.), Verification 1993. Peacekeeping, Arms Control and the Environment, London/New York 1993, 269 280; see also E. B a r r a t t B r o w n, Building a Monitoring and Compliance Regime Under the Montreal Protocol, in: 16 Yale J. of Int'l L. (1991), the contribution of 1990 cf. H. 0

t

Jacob

We r k s

in a n

in this issue; for the interim

t, The New Montreal Protocol: A Small

-

-

-

-

519-570. 14

1994 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Further Reductions of Sulphur Emissions of 14 June 1994, 33 ILM 1540 (1994); the procedure is reprinted in: 24 Environmental Policy & Law (1994), 57, 122; for a description see P. Sz611, The Development of Multilateral Mechanisms for Monitoring Compliance, in: W, Lang (ed.), Sustainable Development and International Law, London/Amsterdam 1995, on

97

-109, 104

et seq. Some of these

described by K. S a c h a r 1 e v, Promoting Compliance with InterLegal Standards: Reflections on Monitoring and Reporting Mechanisms, in: 2 Yearbook of International Environmental Law (1991), 31- 52. 16 Cf. Art. 18.2 Convention on International Trade in Endangered Species of Wild 15

national

are

Environmental

Fauna and Flora

(CITES) (1973),

12 ILM 1085

(1973);

Art. 18.2 Convention of the Protec-

tion of the Marine Environment of the Baltic Sea Area (1974), 13 ILM 546 (1974); Art. 22.2/3 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution (1976), 15 ILM 285, 290

(1976); Art.

11.3 Vienna Convention for the Protection

of


736

Ott

settle their

disputes through negotiations (or "other peaceful means") (Art. 14.1), widely regarded as the most effective means of conflict resolution17. An amicable solution of conflicts between the Parties Convention is facilitated

of several

existence

to

the

the institutionalization of the treaty, i.e. the treaty organs. These bodies allow

by

multilateral

disagreements to surface early and provide a communicative structure cooperative solution. As a second step the dispute may be submitted to the ICJ or to arbitration (Art. 14.2)18. If both Parties to the dispute have made a declaration at the time of ratification to accept compulsory jurisdiction (Art. 14.2), each of the Parties to a dispute may unilaterally bring the issue to for their

the

ICJ or arbitration. However, to date the Solomon Islands are the only Party to the FCCC to have deposited such a declaration19. Since the

compulsory jurisdiction only

have made

a

exists with

to

to

those Parties that

be submitted

jointly

the

disputing states. If the dispute has not been settled procedure can be invoked. Either of by

regard

all conflicts will have

declaration,

after 12 months,

a

third step of the

the Parties may then submit the issue to a conciliation commission (Art. 14.5; 14.6). This commission is to be composed of an equal number of members appointed by either Party and

by

a

chairman chosen

dict is

jointly by those members (Art. 14.6); its vera recommendatory character (Art. 14.6)20.

and has

not binding Any decision of the International Court of Justice (ICJ), however, is automatically legally binding according to Art. 59 of the IQJ Statute. This question was not yet resolved for the arbitration procedure, which the

Parties have failed

the Ozone trol of

to

Layer (1985),

Transboundary

adopt

until

26 ILM 1516

now.

There

(1987) and

are at

present

no

Art. 20.3 Basel Convention

Movements of Hazardous Wastes and their

activities

on

the Con-

Disposal (1989),

28 ILM

649, 657 (1989). 17

L.B. S o h n, The Future of

Dispute Settlement,

in:

R.StJ. MacDonald/D.M. Johnston

The Structure and Process of international Law. Essays in Legal Philosophy, Doctrine and Theory, The Hague (1983), 1121-1146, 1122. Similarly the ICJ in the FisheriesJurisdictiOn Case (UK v. Iceland), ICJ Rep. 1974, 3, at para.72; cf. also the Case concerning Passage through the Great Belt (Finland v. Denmark), Order of 29 July 1991, IQJ

(eds.),

Rep. 1991, 12, 20, where the 18

The Parties have

so

Court welcomes

far

not

adopted

ongoing negotiations during the proceedings. arbitration, as required by Art. 14.2

an annex on

lit. b FCCC. 19

Whereas the

disputes

should

Republic be

FCCC/1996/lnf. 1, p.15. 20 The compulsory or

issue,

see

B

o

of Cuba

settled

by

mandatory

expressly way

of

declared that, in relation

to

diplomatic negotiations,

character of the

dispute

resolution

Art. 14 FCCC, UN Doc.

cf.

was a contentious

d a n s k y (note 2), 549.


Elements of

to

elaborate such

binding

nature

As far

as

a

Supervisory


procedure, although precedents

a

737

Regime

would

point

to

the

of its awards2l.

it is known there has

never

been

a case

where,

in the frame-

environmental treaty, Parties to a dispute have resorted to these dispute settlement procedures. This is first of all due to the fact that only a limited number of treaties provide for the unilateral submission of

work of

an

dispute to an Arbitration Tribunal or the Iq22. Furthermore, there are only a very few declarations by Parties that they are willing to accept the compulsory jurisdiction of the IQJ or an ad hoc tribunal. Even if there are such occasional declarations, the other Party, to a dispute will not have made a declaration and is therefore generally not in the position to take the first Party to court unilaterally. The reasons for this reluctance to provide for unilateral submission in the treaty and to submit a dispute to judicial proceedings are manifold23 and the effect of these traditional means of conflict resolution is quite limited. Nevertheless negotiators keep on using them in international treaty- making24. a

b) The multilateral review procedure In the absence of

binding

commitments

to

reduce

greenhouse

gases, the

for reporting and review of national communications are a and very important element of the FCCC. Precise information on sources

obligations

21

J.

We r k

s in a

n,

Designing

a

Compliance System

for the United Nations Framework

Climate Change, UN Doc. FCCC/AG 1 3/1996/Misc.2, 9. 22 The unilateral submission of a dispute to a tribunal is provided for in the Brussels Convention Relating to the Intervention on the High Seas in Case of Oil Pollution Convention

on

Casualties of 19 November 1969, 8 ILM 466 (1969), Art. VIII and an Annex; the London Dumping Convention of 29 December 1972, 18 ILM 510 (1979), Art. 11 and a procedure;

the Paris Convention of 4 June 1974, 13 ILM 352 (1974), Art. 21 and Annex B; the Bonn Convention on the Protection of the Rhine Against Pollution of 3 December 1976, 16 ILM 242 (1977), Art. 15 and Annex B and the Berne Habitat Convention of 19 September 1979, Art. 18 11. Art. I of the Optional Protocol Concerning the Compulsory Settlement of Disputes

to

the Vienna Convention

2 ILM 727 never

23

on

Civil

Liability

for Nuclear

(1963) provides for the unilateral submission of

a

Damage of 21

dispute

to

the

March 1963, IQJ but has

entered into force.

Contemporary Developments in Legal Techniques in the Settle(1983 11), 177 235, at 178 et seq., 181 et seq.; A. G i u s t i n i, Compulsory Adjudication in International Law: The Past, the Present, and the Future, in: 9 Fordham Int'l L. J. (1985/86), 213 256. 24 Mainly because they satisfy a certain desire for "completeness" of a treaty. See D.W. B

ment

of

o we t

Disputes;

t,

in: 180 RdC

-

-

-


738

Ott

sinks of

being taken and their effect on emissions are, a precondition subsequent design of effective regulatory measures in a protocol. Secondly, this information may provide the basis to assess not only the overall effectiveness of the Convention, but also the individual performance of each Party. As such it might provide the foundation for a multilateral supervisory procedure that is designed to deal with cases of individual non-compliance. Only part of the review procedure is written into the text of the FCCC and, in line with the process-oriented character of environmental regimes, large parts of the procedure were left to be decided by the treaty organS25. The Convention does stipulate in Art. 12.1, 12.2, 12.3 greenhouse

gases,

on

policies

and

measures

first of all,

and

4.2(b) FCCC, what

for

kind of information has

to

be included in the

national communications from industrialized countrieS26. These so-called

I-PartieS27 have to report sources and sinks of greenhouse gaseS28, a detailed description of the policies and measures taken to implement the commitment contained in Art. 4.2 and a specific estimate of the effects that these steps will have on anthropogenic emissions of greenhouse gases. The first of these reports were due six months after the entry into force of the Convention for each Party respectively. At the ninth session of the INC the Parties had agreed on a set of guidelines for harmonization purposes and, by February 1995, the Secretariat had received most of the required communicationS29. The reviews of these early communications by the Secretariat provided the basis for the Annex

decision of the first Conference of the Parties that the Annex I-Parties

25

For

26

See

to

the FCCC

were

inadequate

provisions

of the

30

elaboration of this approach cf. G e h r i n g (note 12); 0 b e r t h ii r (note 2). R.J. Kinley, The Communication and Review of Information under the

an

United Nations Framework Convention

Change, in: W. Katscher/G. Stein/ Why, How and How Much?, Workshop, Konferenzen des Forschungszentrums Jiffich, Vol.14/1994,

J. Lanchbery/j. Salt (eds.), Greenhouse

Proceedings

of

a

on

Climate

Gas Verification

-

141-146. 27

These

the OECD-countries and the EC (minus Mexico, Hungary and the Czech Eastern European States with so-called "economies in transition" (CEIT) listed in Annex I to the FCCC. There are special rules for reports of developing countries, cf. Art. 4.1, 12.1 and 12.5 FCCC.

Republic)

28

are

and

some

Although C02 is the only gas with a mandatory requirement greenhouse gases may be reported voluntarily.

to

be

reported,

data

on

all other

2),

29

Cf. 0 berthii r/Ott 1995a (note 9), 149.

30

Dec. 1 /CP. 1, UN Doc. FCCC/CP/I 995/7/Add. 1; cf. 0 b e r t h ii

144

et

r

/0

tt

1995a

seq.


(note

Elements of

a


Supervisory

739

Regime

The Convention does not specify the process for the review of communications. The Conference of the Parties is, however, empowered to review the information received (Art. 4.2(b)) and to assess the overall effectiveness of the FCCC

(Art. 7.2(c)). The Subsidiary Body for Implementa-

is called upon to assist the Conference of the Parties in carrying out the review (Art. 10.2). In order to elaborate this process, the INC adopted at its tenth session in August 1994 an in-depth review procedure tion

(SBI)

for the Secretariat3l. This

procedure was subsequently adopted by provides the basis for an evaluation of

Conference of the Parties and

the the

information submitted

by the PartieS32. For this purpose, the Secretariat inter alia, compare the data with data gathered by other organizamay, with the approval of the Party contions and expert review teams may -

conduct country ViSitS33. This multilateral review procedure for the

cerned

-

mitments under the FCCC

of the Convention. 11

non

to

is

designed

Long debates

implementation

to assess

procedure

performance

therefore may

com-

in the INC ensured that the review is

-confrontational", but the reports of the in-depth

evaluate the

of the

the overall effectiveness

reviews

do allow

of individual PartieS34. The basis

serve as a

to

in-depth review the compliance of supervise

individual Parties with the commitments under the Convention. This procedure does, however, fail to indicate the steps that might be taken once a case

of

non-compliance

is established. Such

the multilateral consultative process FCCC.

3. The Elaboration

Because of

experiences

given

to

be established under Art. 13

Procedure

in other environmental

the third session of the INC. The

UN Doc.

function could be

of a Supervisory

regimes the negotiators supervisory procedure as early as in Co-Chairs of Working Group 11 pro-

of the FCCC discussed elements of

31

to

a

a

A/AC.237/76, Dec. 10/1; cf.

H. Ott, Tenth Session of the INC/FCCC: for the First Conference of the Parties, in: 2 Environmental Law Network International Newsletter 1994, 3 7; 0 b e r t h 5 r / 0 t t 1995a (note 9), 149. 32 Dec. 2/CP.1, UN Doc. FCCC/CP/1995/7/Add.l. 33 In March 1996 six early in-depth reviews had been made available, cf. Global Envi-

Results and

Options

-

ronmental

Change Report. By June 1996, most Annex I-Parties had received country visits expert review teams, cf. the report of the Secretariat, UN Doc. FCCC/CP/1996/1.3. Most of the individual reports are available on the World Wide Web (http: by

//www.unep.ch/iwcc.html). 34

Cf. e.g. the reports

Doc.

FCCC/IDR.1/JPN.

on

Norway and Japan,

UN Doc. FCCC/IDR.1/NOR and UN


740

Ott

posed a procedure to deal with "Questions Regarding Interpretation and Implementation of the Convention at the fourth session of the INC35. Under this procedure the advisory and adjudicatory function was to be given to special ad boc panels that would have to be established for each occasion36. The panel's decisions were supposed to be recommendatory in character and the ultimate decision would lie with the Conference of the Parties. There was, however, no agreement at the fourth session of the INC

the

on

system

as

those

committee"

"standing solidated

as

a procedure. Proponents of this ad boc panel favouring a non-compliance procedure with a included some language to that regard in the Con-

of such

design

well

Working Document37.

Since the issue could in

not

be resolved until the

decided

the

mid-1992,

negotiators Convention38: According

of the

"shall,

Parties

at

its first

to

to

include

a

adoption

of the FCCC

"marker" into the

text

Art. 13 FCCC the Conference of the

session, consider the establishment of

a

multilat-

eral consultative process, available to Parties on their request, for the resolution of questions regarding the implementation of the Convention". The term "process" indicates the degree of disagreement on the design and function of the instrument39. It should be noted, that Art. 13 only refers

the

to

"implementation",

not

the

"interpretation"

of the FCCC. This

is, however, without prejudice for the negotiations after the first Conference of the Parties, since Art. 13 only directs the Parties to restriction

35

UN Doc.

lating

to

A/AC.237/Misc.13,

30

et

seq. of the Revised

Single

Text

on

Elements Re-

Mechanisms.

proposal by Canada for the first Conference of the Parties in Berlin reiterated these ideas and called for the establishment of a "Committee of Experts" workof many ing under the Subsidiary Body for implementation (SBI), cf. UN Doc. 36

A

FCCC/CP/1995/Misc.4. 37 UN Doc. A/AC.237/15 Annex II; some elements were reproduced by the Secretariat prior to the first Conference of the Parties in UN Doc. A/AC.237/Misc.46. 38 A clause (which might be called a "programme norm") that demands certain action from the treaty bodies and

keeps

a

subject

on

the

agenda,

cf. also Sz6ll (note 14),

99. 39

Like "mechanism", another increasingly used term in international agreements, case of the "Financial Mechanism" of the Montreal Protocol (1987) or the "DisSettlement Mechanism" under the CSCE (30 ILM 382 [1991]), for the latter

e.g. in the

pute cf. H.

Hillgenberg,

fHllen, in:

Der KSZE-Mechanismus

zur

34 German Yearbook of International Law

friedlichen

(1991),

122

Regelung

-137, esp. 130

von

et

Streit-

seq.


Elements of

a

consider the establishment" of such

a

process. Therefore the FCCC nei-

ther requires the Parties to establish a multilateral consultative nor does it mandate a certain design. The Parties

the FCCC in Berlin did

to

741

Supervisory Procedure for the Climate Regime

not

process40,

consider the establishment

a process in much detail and decided to establish an ad hoc group of technical and legal experts to "study all issues" and to report to the second Conference of the PartieS41. This "Ad Hoc Group on Article 13" held

of such

a

short session

30

on

-

31 October 1995 in

Geneva, concurrently with the

is negotiating a climate proby marked progress. This resulted partly from the unwillingness of some Parties to have a result by the second Conference of the Parties and partly from lack of preparation of some "technical and legal experts ,,43 The working group approved the nomination of the chairman by the President of the Conference of the Parties" and gathered some initial

Ad Hoc

Group

toC0142. This

on

the Berlin Mandate which

session was not

views of Parties

characterized

the multilateral consultative process. It visible that there was no agreement on either the necessity on

became

soon or

the

design

mechanism. Whereas the EC, Japan and Russia were supportive of its establishment, the US remained rather defensive. China and, to a of such

a

lesser extent, Australia questioned the use of any new procedure altogether. One of the tasks of the group therefore was seen as defining the

meaning of

in Art. 13, since this term had concealed of the FCCC. The "Ad hoc Group on Ardrafting ticle 13" decided that the best way to elicit and compile views from the the

"process"

term

the differences in the Parties would be

Chairman

send

to

building

on

out a

points

questionnaire

which

was

which had been identified

drafted

during

by

the

the ses-

sion45.

40

See also the Note

41

Dec. 20/CP.1, UN Doc.

mended

by

the interim Secretariat, UN Doc. A/AC.237/59, 10. FCCC/CP/1995/7/Add.1; this approach had been

the interim Secretariat after

A/AC.237/59, 42

by

See 0 b

a

careful

analysis

recom-

of the issue, cf. UN Doc.

11. e rt

h ii r / 0 t t 1995a and 1995b

(note 9);

G

r u

bb

(note 9) for the

process.

43

a

Although for the first Conference of the Parties already the Secretariat had prepared note on supervisory procedures in other regimes and organizations (UN Doc.

FCCC/CP/1995/Misc.2). 44

(UK), 45

The German Environment Minister, Angela Merkel, had nominated Patrick Sz6ll an expert in the elaboration of supervisory procedures. See the report of the first session, UN Doc. FCCC/AG13/1995/2, 6

et

seq.


742

Ott

The

questionnaire were subsidiary bodies and

meetings of the

the

lin Mandate" in

change Group

"Ad hoc

a

positions

first result the

come

clear:

the "Ad hoc

did

from those voiced

of Parties'

picture necessity

or

of

Group

at

the Ber-

give, however,

a

supervisory procedure47. Art. 13 process has be-

an

China and Australia all Parties

Apart from

on

indicate any fundathe session of the

answers

views on a

desirability

not

the Parties

to

during

Article 13" in October. The

on

differentiated

more

made available

March/April 199646. They

of

mental

As

the

answers to

seem to

feel the

need for some kind of a proceSS48. There is, moreover, broad agreement that the process should be established by way of a decision of the Conference of the Parties for reasons of speed and multilateral consultative

universal

applicability.

an annex to

Chile favours the inclusion of this

the FCCC

protocol49.

or

At first

sight

procedure

this

any Art. 16.1, since annexes should be "restricted

into

seems to

be

lists, forms prohibited by and any other material of a descriptive nature". There are, however, exceptions to this general rule for the annexes on arbitration (Art. 14.2(b)) and conciliation (Art. 14.7) in the FCCC. It could be argued therefore, that an

supervisory procedure

an annex on a

would be close

to

enough

to

allow

analogous application50.

Apart from these areas of agreement many differences in opinion are apparent, however, with regard to the design and the functions of a process

give

under Art. 13 FCCC. The views range from a single rapporteur to expert advice (Australia) to a strong legal body, issuing binding judg-

ments on

questions

of lacunae of law and

on

its

interpretation (Chile).

procedure or body, can principle opposed any have Art. 13 a conciliatory function, the Russian perceive an process to of favourable Government (expressly a procedure) conceives Art. 13 as a Whereas China,

46

to

in

new

UN Doc. FCCC/AG13/1996/Misc.1 and Misc.l/Add.1

Parties), references national

to

views of Parties will be references

governmental organizations

and

non-

to

(inputs by

this document.

governmental organizations

Parties and

Inputs by are

non-

inter-

contained

in

UN Doc. FCCC/AG13/1996/Misc.2 and Misc.2/Add.l. 47

Cf.

also

the

synthesis

of

responses,

prepared by

the

Secretariat, UN Doc.

FCCC/AG 13/1996/1. 48

The US did

49

UN Doc.

50

The establishment

tion of

an

strict and Art. 15.4

not

submit any views.

FCCC/AG13/1996/Misc.1,

27

et

seq.

by way of an annex does not offer any advantages from the adopamendment though, since the procedure for the adoption of annexes is rather requires an act of ratification by three fourths of the Parties (Art. 16.2 with

FCCC).


Elements of

Supervisory

a


743

Regime

legal and economic advice. Much more compatthe ideas of the EC, Japan, Canada5l and Turkey, since all of them appear to take the non-compliance procedure of the Montreal Protocol (1987) as a model for departure52. The main function new

subsidiary body

ible with each other

assigned

process under Art. 13

to a

individual

on

are

performance

of

a

Party

by

or a

these countries is

to

deal with the

group of Parties and with individ-

of non-implementation. This function necessarily implies that these Parties are in favour of the establishment of an institutional structure. The EC, Canada and Turkey

ual

cases

standing committee of representativeS53. Most other replies to the questionnaire indicate that some organ or body would have to be established by the Art. 13 procedure. (Chile, Czech Republic, Latvia54, Mali, Russia, Senegal). Australia does not have an opinion on this and Zambia is against any institution being set up. Overall there is a strong inclination of the responding Parties and non-Parties towards a state-centred procedure, which involves only state actors and may only be initiated by States. Canada, however, envisions a role for the Secretariat and Japan recommends to give the right to "trigger" the process to a geographical .group" of PartieS55 or to a subsidiary body of the Conference of the thus envision

a

Parties. As

the

regards

compulsory

or

non-compulsory

character of

a

proce-

dure under Art. 13, almost all respondents emphasize its voluntary nature and sometimes expressly reject the notion that it may lead to a binding de-

cision56. An

exception

to

this is

Chile, advocating

a

strong

judicial proce-

51

Canada, which has always taken great interest in the Art. 13 process, has changed its position on the institutional framework of a procedure under Art. 13 since the first Conference of the Parties: Whereas it used to argue in favour of ad hoc panels and expert committees, it now prefers a standing committee composed of Parties and assisted by a panel of experts. 52

Turkey,

a

non-Party, expressly calls this procedure the example to be followed; in rejects any idea to establish a non-compliance procedure under Art. 13

contrast, Australia

FCCC. 53

not specify its institutional preferences. Although Latvia is conscious of the financial implications of an institution and emphasizes that the use of the process under Art. 13 should be "free of charge". 55 This would meet with difficulties, however, since the geographical groupings used for the composition of organs are not formal institutions under the FCCC. 56 It should be noted, that it is not always clear what is meant by the term "compulsory" and that the competence of a body "to deal with a question" and the question whether the final outcome of this process is compulsory are sometimes confused.

Japan does

54

48 Z 56/3


744

Ott

dure, and possibly Turkey57. The and leaves

to

EC did

tilateral consultative process would be United

Kingdom,

further ideas

not

the Conference of the Parties the

in

addition

this

express

an

question

compulsory

opinion

of whether or

on

this

a

mul-

optional.

The

the response of the EC, has submitted and emphasizes that the procedure should to

question judicial inquisitorial or confrontational. The second session of the Ad hoc Group on Article 13 was held in conjunction with the second Conference of the Parties to the FCCC, July 8-19, 1996 in Geneva. No substantial negotiations took place, but the session was preceded by an informative workshop with experts from various organizations or treaty regimes who gave an insight into their respective procedureS58. The session itself lastet for only half a day and produced a not

on

be

or

recommendation

otherwise

to

the Conference of the Parties

on

its further work.

decision, which was adopted by the Conference of the Parties withamendments, calls on the Ad hoc Group on Article 13 to continue its

This out

work and

to report to the third session of the Conference of the Parties, December 1997 in Kyoto, Japan59.

4. Some Comments It is

not

gotiations

easy

to

predict what

in the Ad hoc

Group

kind of on

procedure

Art. 13

or

will result from the

whether there will be

a

ne-

mul-

tilateral consultative process at all. After one session of the Ad hoc Group on Article 13 and after twenty-one Parties to the FCCC have responded to

the

questionnaire, it appears that some of the contradictions which negotiation of the issue before the adoption of the Con-

characterized the

vention have resurfaced60. However, there is still a broad consensus that the procedure should be non-confrontational, non-punitive and rather fa-

cilitative

in

experiences

57

character. These characteristics with the

are

non-compliance procedure

reasonable in

light

of the

of the Montreal Protocol

legal

"The Convention constitutes the basis of legal rules that govern relationship among and international organizations. The process should be considered to be part of those rules". Russia stresses the consultative role of this process, but also envisages it to be

used

"directly

states

as a

basic mechanism under Article 14 of the Convention

(Settlement of

Dis-

putes)". 58

Centre for Human Rights, the Implementation Committee. UN Doc. FCCC/CP/1996/L.1 of 11 July 1996. See B o d a n s k y (note 2), 547 et seq. for the negotiation history.

Discussants

came

from ILO,

WTO, the

Basel Con-

vention Secretariat and the Montreal Protocol 59 60


Elements of

a

Supervisory


Regime

745

thinking on this subjeCt6l. in bringing about compunitive approach in for if the reasons non-compliance are, general, not a wilful displiance regard for legal obligations, but rather the incapacity of Governments, the ambiguity of norms or changing circumstances between the adoption of a (1987) and they

are

also in line with academic does

A

not

offer much

success

treaty and its entry into force62. Furthermore, compliance with environmental treaties is

the fact that their

structure

is different from that of

complicated by

bilateral and many character64 most en-

most

multilateral treaties63. Because of their non-reciprocal vironmental treaties generally lack a certain interdependence of rights and dutieS65, which is usually the basis for the enforcement of obligations in

regimes. In a multilateral environmental convention, a violation of environmental obligations by one Party does not automatically lead to an infringement of another Party's rights, but rather is a violation of the rights and expectations of all other Parties to this treaty. Enforcement of a Party's treaty

obligations seen

rely only on bilateral procedures as it is dispute settlement procedures like Art. 14 FCCC.

therefore

in traditional

cannot

For the enforcement of environmental

compliance procedure developed tocol (1987) appears

to

be

a

treaties, the multilateral

fore-

non-

in the framework of the Montreal Pro-

much better mode166. This is the

approach ap-

See e.g. G e h r i n g (note 12), 50 et seq.; K o s k e n n i e m i (note 12); S z 611 (note 14); C h a y e s, On compliance, in: 47 International Organization a y e s /A. H a n d I e r (1993),175-205, and A. Handler Chayes/A. Chayes/R.B. Mitchell, Active Com61

A. C h

pliance Management in Environmental Treaties; in: Lang (note 14), 75 89. 62 See Chayes/Handler Chayes (note 56) and Handler Chayes/ Chayes/Mitchell (note 56); cf. also R.B. Bilder, International Third Party Dispute -

Settlement; in: 17Denverj. of Int'l L. & Pol. (1988/89), 471-503 at478 and L.K. Caldwe 11, Beyond Environmental Diplomacy: the Changing Institutional Structure of International Cooperation; in: J.E. Carroll (ed.), International Environmental Diplomacy, Cam-

bridge 1988, 63

13

correspondence 64

-

27

These treaties of

at

14.

(like private

rights

The basic treatise

law contracts)

are

characterized

contracting Parties. of reciprocity for the

by

a

"synallagma",

i.e. the

and duties for the on

the role

conclusion of treaties is

im Zustandekommen v6lkerrechtlicher

Vertrage. Bauprinzip der internationalen Rechtsbeziehungen, Berlin 1972; cf. also A.C. K i s s /D. S h e I t o n, System Analysis of International Law: A Methodological Enquiry, in: XVII NYIL (1986), 44 74 at 73, and for the ozone regime W, L a n g, Die Abwehr weiträumiger Umweltgefahren, insbesondere durch Internationale Organisationen, B. S i in

m

Gedanken

a, Das zu

Reziprozititselement

einem

-

(1992), 57 85 at 77. Wolfrum, Purposes and Principles of International Environmental Law, in: 33 GYIL (1990), 308 330, at 327. 66 Cf. Barratt-Brown (note 13); Ott (note 13); Koskennieml (note 12); Sz6ll (note 14) and the contribution of Jacob We r k s in a n in this issue. in: 32 BDGesVR 65

-

R.

-


746

Ott

favoured

parently have

to

Such

a

by the EC and Japan67, although the concept would adjusted to the special circumstances of the climate regime 68

be


would best be established

decision of the Conference of the Parties. Art. 7.2

the FCCC

provide

basis for this

legal

a

(1) and

by way of a Art. 7.2 (in) of

secondary legislation:

The first

clause enables the Conference of the Parties to establish any subsidiary bodies it deems necessary, and the latter empowers the Conference of the Parties

exercise such other functions

to

as

are

required

for the achieve-

objective of the FCCC. precedent of the ozone regime is followed, the initiation of this supervisory procedure will not be restricted to the Parties. Experience with other procedures, such as the enforcement of EC law and human rights conventions, indicates that the right to "trigger" proceedings should in addition be given to a body other than the Parties. The Secretariat would be in a good position for this purpose since it oversees the implementation of the Convention and has the required skilled personneJ69. It would have the first opportunity to notice implementation problems of a Party, since its experts conduct the in-depth review of national communications, and it would be able to receive and verify information supplied by non- governmental sourceS70. The ultimate decision-making power should lie with the Conference of the Parties as the supreme body of the Convention (Art. 7.2). However, a smaller body would have to be established in order to deal with questions of non-compliance in a facilitative manner. The Implementation Committee of the Montreal Protocol (1987), consisting of ten members with equal geographical distribution is a good model for the size and structure of such a body. As much as it would be desirable to give non-state actors the right to sit on such a body, considerations of sovereignty and political expediency speak strongly in favour of a body of representatives. This "Committee on Art. 13" should receive the complaints by other Parties, ment

of the

If the

67

Most contributions

response

to

the

from scientists

questionnaire

are

or

pointing

non-governmental organizations to

the

same

direction, cf.

in their

UN

Doc.

FCCC/AG13/1996/Misc.2 and Misc.2/Add.l. 68

As it

(note 14), 69

was

104

adjusted

in the

case

of the Second

Sulphur

Protocol

(1994), cf. Sz6ll

et

seq. Cf. also UN Doc. FCCC/AG13/1996/Misc.2/Add.1

(Contribution

of the

Wuppertal

Institute). 70

Under the

non-compliance procedure of the Second Sulphur Protocol (1994), the to report to the Implementation Committee on possible non-com-

Secretariat is allowed

pliance

however it becomes

aware

of it.


Elements of

indications of

a


Supervisory

non-compliance by

the Secretariat

or

747

Regime

submissions

by

the

Party experiencing difficulties. It should then try to reach an amicable solution to the problem and, failing to reach a solution, report to the Conference of the Parties and recommend The establishment of such

a

a

suitable

course


of action.

would therefore

for the detection of

not

only provide a structure problems implementation by individual Parties and for the resolution of conflicts regarding noncompliance, but would furthermore act as a "conflict avoidance mechanism"71. Through a phased procedure, taking the in-depth review or individual submissions as a starting point, difficult cases would be subjected to a cooperative process of communication and (mild) coercion that could facilitate the smooth and effective implementation of the Convention's in

commitments.

Seen

together

with the

such

in-depth review,

fulfill all three functions which

are

vital for

a

procedure

could thus

an

effective

supervisory

mechanism: review, correction and established by Dec. 2/CP.1 in Berlin,

creativity72. The in-depth review, provides the basis for a determination of the factual situation with regard to implementation. After further elaboration, e.g. for the review of developing country communications, it could serve as a first step of the supervisory procedure for the detection of implementation problems (review function). The correction function is

missing

in

the FCCC

Its aim is the

of or

so

far but it does have

a

basis in Art. 13.

elimination of

prevention non-compliant behaviour financial other assistance, internal or Party through negotiations, last and with all due care, by way of a resort public shaming or, as or

a

sanctions. The third

function, that of creativity,

of individual misbehaviour. The rules of

a

creativity

regime

to

changed

aims at more

creativity

than the correction

function intends

circumstances. In national

to

adjust

the

systems the constitutional court, but

function is sometimes

legal

assigned to a rarely used at the international level73. Nevertheless, circumchange, sometimes rules become problematic simply with the

courts are stances

71

Similarly

the

of

response

the

UK

to

the

questionnaire,

UN

Doc.

FCCC/AG13/1996/Misc.l. 72 Cf. GJ.H. van Hoof/ K. de Vey Mestdagh, Mechanisms of international Supervision, in: P. van Dijk (Gen. ed.), Supervisory Mechanisms in International Economic Organisations, Deventer 1984, 3 45 at 11 et seq. 73 An exception to this is the European Court of justice, whose function is not only the interpretation and application of EC law, but also its progressive development. -


748

Ott

lapse of time and this may lead to inadvertent non-compliance74. The supervisory procedure could therefore include a provision for the adjustment of norms75' preferably by way of a decision of the Conference of the Parties as the supreme body where all Parties are represented. In developing the supervisory procedure under Art. 13 FCCC, the negotiators should therefore aim to establish not only a mechanism for the correction of non-compliance by a Party, but also for the correction of the rules if necessary.

5.

The

negotiations

Conclusion

within the Ad hoc

Group

on

ended process and the final recommendation Parties may not necessarily be in favour of


under the FCCC.

Article 13

to

are an

open-

the Conference of the multilateral

establishing a According to the

mandate of

20/CP.1, extended by the decision of the second Conference of the Parties, the group has to report to the third Conference of the Parties in Dec.

December 1997. The where substantial from 16

to

next

session of the Ad hoc

negotiations

are

supposed

18 December 1996. This timetable

Group

on

Article 13,

scheduled, place, might, however, be suitable

to

take

is

second and only implicit purpose of the Ad hoc Group on Article namely to negotiate a supervisory procedure for the future climate protocol (or another legal instrument) to be adopted by the third Conferfor

a

13,

ence

of the Parties76.

This expectation of a future climate protocol may be one explanation for the rather glacial progress in developing a multilateral consultative feel the need to process within the FCCC. Most Parties do not seem to within the Convensettlement of conflicts the establish a procedure for tion 77. An

important

FCCC does

imposes only

74

reason

for this reluctance may be the fact that the

contain any substantial commitments. The Convention with regard very limited legally binding obligations, mainly

not

Chayes/Handler Chayes (note 56), 195 et seq. Here the resolution of conflicts may turn into ad boc legislation, cf. M. K o s k e n m i, Peaceful Settlement of Environmental Disputes, in: Nordic J. of Int'l L. (199 1), Cf.

75 n

ie

73

-

76

-

92,

at

8 1.

Apparently

with this in mind, the Chairman of the Ad boc

Group

on

Article 13 pro-

posed a recommendation that links its work to the negotiations on a climate protocol taking place in the Ad boc Group on the Berlin Mandate, cf. UN Doc. FCCC/CP/1996/L. L 77 A further indication for this lack of urgency is the failure to adopt the required annexes on

arbitration and conciliation (Art. 14.2

(b) and

Art.

14.7).


Elements of

a

Supervisory


749

Regime

national communications (Art. 4 and Art. 12) and the financing of developing countries' reporting by industrialized countries (Art. 4.3)78. In to

the absence of substantial the Parties'

obligations, however,

will

any encroachment upon

with strong resistance, which strong overriding interests.

only equally Further support for this suggestion can be found in the history of the two existing non-compliance procedures, negotiated in the framework of the Montreal Protocol (1987) and the Second Sulphur Protocol (1994)79. Both these treaties contain strong and legally binding reduction targets for certain damaging substances, and the compliance with these obligations may have substantial economical implications. In these cases the Parties had a profound interest in preventing "free riding", i.e. not to allow other Parties to enjoy the benefit of the treaty without having to pay the "price" and comply8O. This is the kind of situation where most Parties to an environmental treaty will support the establishment of a supervisory procedure, although they may, in general, not be inclined towards multilateral be

sovereignty

overcome

if there

are

meet

can

enforcement mechanisms8l.

78 79

Bodansky (note 2) and Ott (Anm. 7). Although Patrick S z 6 11 appears to draw the opposite See

conclusions from these

exam-

ples, cf. Sz6ll (note 14), 107. it is not clear, however, whether Sz6ll regards the noncompliance procedures as "strict" enforcement mechanisms or as rather soft approaches compared to strict judicial enforcement. 80 The "free rider problem" is part of the global commons problem, cf. E. 0 s t r o m, Governing the Commons. The evolution of institutions for collective action, Cambridge 1990,6. 81

One

example

for this rather reluctant attitude

of the proponents of Sz6ll (note 14), 99.

a


is

the US, which nevertheless

in the Montreal Protocol

was one

(1987), cf.


Elements of a Supervisory Procedure

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